Rule 1.540(b), Florida Rules of Civil Procedure: In Search ...

Florida State University Law Review Florida State University Law Review

Volume 12 Issue 4 Article 5

Winter 1985

Rule 1.540(b), Florida Rules of Civil Procedure: In Search of an Rule 1.540(b), Florida Rules of Civil Procedure: In Search of an

Equitable Standard of Relief from Fraud Equitable Standard of Relief from Fraud

C. Timothy Gray

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RULE 1.540(b), FLORIDA RULES OF CIVIL PROCEDURE:IN SEARCH OF AN EQUITABLE STANDARD FOR RELIEF

FROM FRAUD

C. TIMOTHY GRAY

I. INTRODUCTION

Rule 1.540(b) of the Florida Rules of Civil Procedure,' like Fed-eral Rule of Civil Procedure 60(b),2 allows for relief from judg-ments which for a variety of reasons should not continue to main-tain their vitality. The rules establish various grounds for relief bymotion in the original trial court. In addition to the grounds forrelief under the motion procedure, Rule 1.540(b) provides for reliefthrough an independent action: "This rule does not limit thepower of a court to entertain an independent action to relieve aparty from a judgment, decree, order or proceeding or to set aside

1. FLA. R. Civ. P. 1.540(b) reads:Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evi-

dence; Fraud, etc. On motion and upon such terms as are just, the court mayrelieve a party or his legal representative from a final judgment, decree, order orproceeding for the following reasons: (1) mistake, inadvertence, surprise or excusa-ble neglect; (2) newly discovered evidence which by due diligence could not havebeen discovered in time to move for a new trial or rehearing; (3) fraud (whetherheretofore denominated intrinsic or extrinsic), misrepresentation or other miscon-duct of an adverse party; (4) the judgment or decree is void; (5) the judgment ordecree has been satisfied, released or discharged or a prior judgment or decreeupon which it is based has been reversed or otherwise vacated or it is no longerequitable that the judgment or decree should have prospective application. Themotion shall be made within a reasonable time, and for reasons (1), (2), and (3)not more than one year after the judgment, decree, order or proceeding was en-tered or taken. A motion under this subdivision does not affect the finality of ajudgment or decree or suspend its operation. This rule does not limit the power ofa court to entertain an independent action to relieve a party from a judgment,decree, order or proceeding or to set aside a judgment or decree for fraud upon thecourt.

Writs of corarn nobis, coramn vobis, audita querela and bills of review and billsin the nature of a bill of review are abolished and the procedure for obtaining anyrelief from a judgment or decree shall be by motion as prescribed in these rules orby an independent action.

2. FLA. R. Civ. P. 1.540(b) and FED. R. Civ. P. 60(b) are virtually identical, except thefederal rule contains an additional provision which can be raised by motion at any time: "(6)any other reason justifying relief from the operation of the judgment." Also, the savingclause of the federal rule contains additional language. The entire sentence reads:

This rule does not limit the power of a court to entertain an independent action torelieve a party from a judgment, order, or proceeding, or to grant relief to adefendent not actually personally notified as provided in Title 28, USC, § 1655,or to set aside a judgment for fraud upon the court."

(Emphasis added.)

852 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 12:851

a judgment or decree for fraud upon the court."3

This sentence (the "saving clause")4 has been the subject of vari-ous interpretations by the Florida courts. The courts have strug-gled to define the situations in which an independent action will beallowed, and the differences between fraud contestable within oneyear of the entry of final judgment by motion under Rule1.540(b)(3) and the types of fraud which can be a basis for an inde-pendent action after one year. The most recent treatment has beenby the Florida Supreme Court in DeClaire v. Yohanan.5 This com-ment analyzes the current interpretation of the Florida savingclause in light of past applications and the jurisprudence surround-ing the parallel federal rule.

This analysis begins by establishing operative definitions of thetypes of fraud that have been considered by courts in construingthe rule. Next is a review of the history and development of Fed-eral Rule 60(b), which was the basis of Florida Rule 1.540(b). Be-cause of the Florida rule's foundation in the federal rule, the treat-ment by federal courts of the federal rule has a persuasive impacton the interpretation of the Florida rule by Florida courts. Thiscomment therefore assumes that federal interpretations have au-thoritative value in the interpretation of the Florida rule.

The treatment of the Florida rule in a series of Florida districtcourt of appeal cases is reviewed, with emphasis on two recent de-cisions. 7 These two cases provided the framework for the FloridaSupreme Court's most recent attempt, in DeClaire, to define thoseunique situations in which a judgment could be set aside morethan one year after the entry of a final judgment. This commentundertakes a critical review of DeClaire, which held that an inde-pendent action could only be maintained when the circumstancesof the case demonstrated "extrinsic fraud." In reaching this con-clusion, the court eliminated any distinction between two separatebases for relief from a judgment under the saving clause: "extrinsicfraud" and "fraud upon the court." The analysis suggests that the

3. FLA. R. Civ. P. 1.540(b).4. See Barns & Mattis, 1962 Amendments to the Florida Rules of Civil Procedure, 17 U.

MIAMI L. REV. 276, 296 (1963).5. 453 So. 2d 375 (Fla. 1984).6. See Willis, Post-Judgment Relief Under Rule 1.38, 40 FLA. B.J. 1042 (1966). In com-

menting on the predecessor to Rule 1.540, Judge Willis suggested that "our Rule 1.38(b) istaken from Rule 60(b) of the federal rules and cases digested under this rule certainly wouldbe very persuasive and perhaps controlling in a Florida court." Id. at 1045.

7. Brown v. Brown, 432 So. 2d 704 (Fla. 3d DCA 1983); Yohanan v. deClaire, 421 So. 2d551 (Fla. 4th DCA 1982), rev'd, 453 So. 2d 375 (Fla. 1984).

RELIEF FROM FRAUD

precedent used by the court to support its interpretation of therule does not demarcate "intrinsic fraud" and "extrinsic fraud" asclearly as the court implied.

Finally, this comment concludes that the Florida Supreme Courtcould have achieved its goal of protecting the finality of judgmentsby an application of equitable considerations that other courtshave used when confronted with actions to open a judgmenttainted with fraud. It suggests that the court refine its interpreta-tion of the language of the Rule 1.540(b) "saving clause" and re-store the distinction between extrinsic fraud and fraud upon thecourt. It also suggests that the court consider adoption of equitablestandards rather than relying upon definitions of extrinsic fraudand intrinsic fraud, which have not been consistently applied bythe courts.

II. THE TYPES OF FRAUD

In examining the current state of the law in Florida as to whatcircumstances will permit invocation of the saving clause to relievea party from a judgment obtained with the assistance of fraud, it isimportant to classify the definitions applied to the types of fraudwith which the courts have had to deal. In both the Florida andfederal rules, one type of fraud is specifically referenced. Thatfraud is "fraud upon the court." In Moore's Federal Practice,Professors Moore and Lucas offer the following definition:

"Fraud upon the court" should, we believe, embrace only thatspecies of fraud which does or attempts to, subvert the integrityof the court itself, or is a fraud perpetrated by officers of thecourt so that the judicial machinery cannot perform in the usualmanner its impartial task of adjudging cases that are presentedfor adjudication, and relief should be denied in the absence ofsuch conduct. Fraud inter partes, without more, should not be afraud upon the court, but redress should be left to a motionunder 60(b)(3) or to the independent action.8

Examples of fraud upon the court are "bribery or other corruptionof the court, or a member of the court participating in the decision;[or] employment of counsel to 'influence' the court, even though it

8. 7 J. MOORE & J. LUCAS, MOORE'S FEDERAL PRACTICE 1 60.33, at 360-62 (2d ed. 1983)(footnotes omitted) [hereinafter cited as MOORE's]. But cf. Toscano v. Commissioner, 441F.2d 930 (9th Cir. 1971) (reviewing various definitions of "fraud upon the court" and ques-tioning Moore's).

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is not shown that the court was influenced."9

These definitions and examples of fraud upon the court clearlydiffer from the definition of extrinsic fraud which will support anindependent action. In 1946, the Florida Supreme Court character-ized extrinsic fraud as

prevention of an unsuccessful party from presenting his case, byfraud or deception practiced by his adversary; keeping the oppo-nent away from court; falsely promising a compromise; ignoranceof the adversary about the existence of the suit or the acts of theplaintiff; fraudulent representation of a party without his consentand connivance in his defeat; and so on.10

In DeClaire, the court summarized its view: "In other words, ex-trinsic fraud occurs where a defendant has somehow been pre-vented from participating in a cause."11

In contrast to fraud upon the court and extrinsic fraud is thedefinition of intrinsic fraud. The Florida Supreme Court inDeClaire distinguished it as follows: "Intrinsic fraud, on the otherhand, applies to fraudulent conduct that arises within a proceedingand pertains to the issues in the case that have been tried or couldhave been tried."12 The classic example of intrinsic fraud is per-jury, as the testimony of the perjured witness was subjected to thescrutiny of the fact finder, and the determination of the fact finderis considered conclusive as to the testimony. 3

III. FEDERAL RULE 60(b): ITS HISTORY AND DEVELOPMENT

A. Bases for Relief

The purpose of Federal Rule 60(b) and Florida Rule 1.540(b) isto establish procedures for providing extraordinary relief from

9. 7 MooRE's, supra note 8, T 60.33, at 357; see Root Ref. Co. v. Universal Oil Prods. Co.,169 F.2d 514 (3d Cir. 1948) (appeals court mandate set aside because of bribery of a mem-ber of the appeals court in earlier appeal between the parties), cert. denied, 335 U.S. 912(1949); cf. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944) (forged articleused to secure patent was referred to in appellate proceedings to support patentee's case ofinfringement and constituted fraud upon the court). Hazel-Atlas is the leading case on theconcept of fraud upon the court. The Committee Note on the 1946 amendments to FED. R.Civ. P. 60(b) cites Hazel-Atlas as an example of fraud upon the court.

10. Fair v. Tampa Elec. Co., 27 So. 2d 514, 515 (1946) (relying on illustrations given inUnited States v. Throckmorton, 98 U.S. 61 (1878)).

11. DeClaire, 453 So. 2d at 377. See infra notes 24-27 and accompanying text regardingThrockmorton, which states the universally employed definition of extrinsic fraud.

12. DeClaire, 453 So. 2d at 377.13. Id. at 377, 380.

RELIEF FROM FRAUD

judgments, decrees, or orders after the time has passed for filingthe usual post-trial motions in the original trial court or for seek-ing an appeal."' The rule allows a party against whom a judgmenthas been entered to file motions in the trial court issuing the judg-ment for a variety of reasons that may have caused an incorrectdetermination in the original proceeding. Also, under limited cir-cumstances, an independent action, equitable in nature, can bebrought to attack a judgment.' 5 However, the ability to reopenjudgments under these rules runs headlong into the public policyfavoring the termination of litigation. "The problem of whetherand under what circumstances a final judgment should be assaila-ble involves the clash of two important principles-that litigationmust come to an end, .. and that justice should be accorded in aparticular case .... "16

Prior to the adoption of the federal rule, courts maintained thepower to relieve a party from judgments and decrees through a va-riety of ancillary common law writs and equitable actions.1 7 Thecurrent version of the federal rule "expressly abolishes these ancil-lary remedies."' 8 Under these ancillary remedies, courts couldgrant relief for a variety of reasons. Fraud perpetrated in obtaininga judgment was a major basis for these ancillary remedies.19

Under the federal rule, the power of the court to grant relief forthe reasons embodied in the ancillary remedies was either ex-pressly enumerated in one of the categories available by motion orretained in the independent action by way of the saving clause.2 0

The 1946 Committee Note to Federal Rule 60(b) comments thatthere are two methods of relief available under the rule:

Two types of procedure to obtain relief from judgments are speci-

14. See 7 MooRE's, supra note 8, 7 60.09-.37; 11 C. WRIGHT & A. MILLER, FEDERAL PRAC-TICE AND PROCEDURE §§ 2851-2852 (1973); Barns & Mattis, supra note 4; see generallyMoore & Rogers, Federal Relief from Civil Judgments, 55 YALE L.J. 623 (1946). Because ofthe language and history of the Florida rule, principles that can be drawn from the federalrule by implication also apply to the Florida rule.

15. See supra note 1 for the full text of the Florida rule and supra note 2 for additionallanguage contained in the federal rule.

16. Brown, 432 So. 2d at 707 (citations omitted).17. See 7 MOORE'S, supra note 8, 11 60.12-.15; Moore & Rogers, supra note 14, at 653-82;

Willis, supra note 6.18. C. WRIGHT & A. MILLER, supra note 14, § 2851. See supra notes I and 2 for language

of the rule.19. See 7 MooRE's, supra note 8, 71 60.12-.15.20. See DeClaire, 453 So. 2d at 377-78 (interpreting Florida rule as following the federal

rule).

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fled in the rules as it is proposed to amend them. One procedureis by motion in the court and in the action in which the judgmentwas rendered. The other procedure is by a new or independentaction to obtain relief from a judgment, which action may or maynot be begun in the court which rendered the judgment.2

As part of the dual method for relief, the power of the courts toentertain an independent action was only restricted by the equita-ble limitations that existed prior to the adoption of the rules."There can be no doubt, then, that the first saving clause pre-served the equitable power of a federal court to entertain an inde-pendent action to enjoin the enforcement of, or otherwise give re-lief from, a judgment on whatever basis chancery would affordrelief.

22

B. Pre-Federal Rule 60(b): United States v. Throckmorton

The general rule that was followed prior to the adoption of thefederal rules was that relief through an independent action forfraud could only be given for what constituted extrinsic fraud.23

This rule was initially laid down in the case of United States v.Throckmorton.24 In Throckmorton, the federal government waschallenging the issuance of a California land patent that had beengranted some twenty years earlier. A forged document was used bythe patentee to convince a tribunal in the original confirmationproceedings that the patentee was the rightful holder of the pat-ent.25 In holding that the judgment could not be set aside, theUnited States Supreme Court set forth the criteria upon whichcourts have relied 28 in allowing an independent action to bebrought for extrinsic fraud:

21. See Committee Note reproduced at 6A MOORE'S, supra note 8, 60.01[8].22. 7 id. 60.12 (emphasis in original). Moore and Lucas refer to each separate clause in

the federal rule as being a separate "saving clause." Id. 1 60.31-.33. For the purposes of thiscomment, the entire sentence in both the Florida and federal rules is referred to as the"saving clause."

23. See Comment, Equitable Relief from Judgments, Orders and Decrees Obtained byFraud, 23 CALIF. L. REV. 79, 80 (1935); Note, Injunctions Against the Enforcement of Judg-ments Obtained by Perjury, 22 HARV. L. REV. 600, 601 (1909).

24. 98 U.S. 61 (1878).25. Id. at 62-64.26. See, e.g., Cuthill v. Ortman-Miller Mach. Co., 216 F.2d 336, 338 (7th Cir. 1954); Chi-

cago R.I. & P. Ry. v. Callicote, 267 F. 799, 803 (4th Cir.), cert. denied, 255 U.S. 570 (1920);Great Coastal Express, Inc. v. International Bhd. of Teamsters, 86 F.R.D. 131, 138-39 (E.D.Va. 1980), aff'd, 675 F.2d 1349 (4th Cir. 1982), cert. denied, 459 U.S. 1128 (1983); ColumbusHotel Corp. v. Hotel Mgmt. Co., 156 So. 893, 897-98 (Fla. 1934).

RELIEF FROM FRAUD

[T]here is an admitted exception to this general rule [that judg-ments are final] in cases where, by reason of something done bythe successful party to a suit, there was in fact no adversary trialor decision of the issue in the case. Where the unsuccessful partyhas been prevented from exhibiting fully his case, by fraud or de-ception practised on him by his opponent, as by keeping himaway from the court, a false promise of a compromise; or wherethe defendant never had knowledge of the suit, being kept in ig-norance by the acts of the plaintiff; or where an attorney fraudu-lently or without authority assumes to represent a party and con-nives at his defeat; or where the attorney regularly employedcorruptly sells out his client's interest to the other side,-these,and similar cases which show that there has never been a realcontest in the trial or hearing of the case, are reasons for which anew suit may be sustained to set aside and annul the former judg-ment or decree, and open the case for a new and fair hearing.2"

While Throckmorton has been followed for the general rule thata judgment can be reopened by independent action only for extrin-sic fraud, it has not been uniformly held that the requirement thatthe fraud be extrinsic is the "single limitation"28 on the court's eq-uitable power to grant relief from judgment.2 9 Indeed, the weightof authority in federal case law supports the idea that there is adistinction between an independent action to set aside a judgmentfor extrinsic fraud and an action for relief for fraud upon the court.

C. Cases Under and Commentaries on Federal Rule 60(b)

A recent example of a court drawing and applying a distinctionbetween an independent action for fraud and relief for fraud uponthe court is Great Coastal Express Inc. v. International Brother-hood of Teamsters.3 In that case, the United States Court of Ap-peals for the Fourth Circuit analyzed the facts in light of the fed-eral district court's ruling that "such facts did not constitute fraudon the court . . . or support an independent action for relief."31

The appeals court concluded that the particular instance of per-jury in the trial court was not sufficient to constitute fraud uponthe court.32 The court, relying on the "doctrine [that] fraud must

27. Throckmorton, 98 U.S. at 65-66.28. Brown, 432 So. 2d at 708.29. See infra notes 134-62 and accompanying text.30. 675 F.2d 1349 (4th Cir. 1982), cert. denied, 459 U.S. 1128 (1983).31. Id. at 1351.32 Id. at 1356, and generally at 1355-57.

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be 'extrinsic' to justify relief,"33 also held that the perjury did notsupport an independent action in equity for relief 4

Some federal cases, however, have failed to explicitly recognizethe distinction between fraud that would support an independentaction and an action for relief for fraud upon the court. 5 On theother hand, virtually all commentators have recognized that thesaving clause of Rule 60(b) retains separate powers to entertain anindependent action for fraud and to grant relief for fraud upon thecourt. Professors Wright and Miller, after reviewing cases givingvarious definitions to the phrase "fraud upon the court," point thefollowing out:

Perhaps the principal contribution of all of these attempts todefine "fraud upon the court" and to distinguish it from mere"fraud" is as a reminder that there is a distinction. Any fraudconnected with the presentation of a case to a court is a fraudupon the court, in a broad sense. That cannot be the sense inwhich the term is used in the final saving clause of Rule 60(b).The remedy for most cases of fraud must continue to be by mo-tion under Rule 60(b)(3) or by an independent action, subject tothe procedural limitations applicable to those remedies.3 6

Another foundation for the proposition that the saving clausecontains separate and distinct powers to relieve a party from afraudulently obtained judgment is the history of Federal Rule60(b). When Federal Rule 60(b) was first promulgated in 1938, thesaving clause read as follows:

This rule does not limit the power of a court (1) to entertain anaction to relieve a party from a judgment, order, or proceeding, or

33. Id. at 1358; see also Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 702 (2d Cir.),cert. denied, 409 U.S. 883 (1972).

34. Great Coastal Express, 675 F.2d at 1358.35. See Keys v. Dunbar, 405 F.2d 955 (9th Cir.), cert. denied, 396 U.S. 880 (1969);

Dowdy v. Hawfield, 189 F.2d 637 (D.C. Cir. 1951).36. C. WRIGHT & A. MILLER, supra note 14, § 2870, at 253 (footnotes omitted) (emphasis

added); see also 7 MooRE's, supra note 8, 60.33; Kane, Relief from Federal Judgments: AMorass Unrelieved by a Rule, 30 HASTINGS L.J. 41, 42 (1978); Comment, Rule 60(b): Surveyand Proposal for General Reform, 60 CALIF. L. REV. 531, 542, 553 (1972) [hereinafter citedas Comment, Proposal for General Reform]; Comment, Attacking Fraudulently ObtainedJudgments in the Federal Courts, 48 IOWA L. REv. 398 (1963); Comment, Seeking MoreEquitable Relief from Fraudulent Judgments: Abolishing the Extrinsic-Intrinsic Distinc-tion, 12 PAC. L.J. 1013 (1981) [hereinafter cited as Comment, Seeking More Equitable Re-lief); Comment, Relief from Unfairly Obtained Verdicts in Federal Courts, 30 S.C.L. REv.781, 783 (1979) [hereinafter cited as Comment, Unfairly Obtained Verdicts]; Rule 60(b):Fraud on the Court, 40 WASH. & LEE L. REV. 554, 555-56 (1983).

RELIEF FROM FRAUD

(2) to set aside within one year, as provided in Section 57 of theJudicial Code, U. S. C., Title 28, § 118, a judgment obtainedagainst a defendant not actually personally notified.-

The language reserving to the courts the power to set aside ajudgment for fraud upon the court was not added until the rulewas amended in 1946.38 After reviewing other changes in the ruleallowing relief from fraud, the Committee Note to the 1946 versionstates:

The amendment . . . mak[es] fraud an express ground for reliefby motion; and under the saving clause, fraud may be urged as abasis for relief by independent action insofar as established doc-trine permits. . . And the rule does not limit the power of thecourt, when fraud has been perpetrated upon it, to give reliefunder the saving clause. 9

In light of the history of Federal Rule 60(b), the conclusion caneasily be drawn that the powers to (1) "entertain an independentaction to relieve a party from a judgment, order, or proceeding," or(2) "set aside a judgment for fraud upon the court," are clearlyseparate powers that were retained in the federal courts in the de-velopment and adoption of the rule.

IV. DIFFERENCES BETWEEN FRAUD UPON THE COURT ANDEXTRINSIC FRAUD SUSTAINING AN INDEPENDENT ACTION

Thus it is clear that the federal rule contemplates at least twodifferent grounds for allowing relief from a judgment tainted bysome form of fraud. Indeed, the difference in these grounds tran-scends mere verbiage. There are important differences between theapplication of the saving clause in an independent action for relieffrom fraud, and the setting aside of a judgment for fraud upon thecourt. Two of these differences are explored here: (1) the applica-tion of the equitable doctrine of laches, and (2) the extent to whicha court can act on its own accord to set aside a judgment obtainedby fraud upon the court.

A. Laches

Laches is a doctrine that prevents a person from invoking the

37. See 6A MOORE'S, supra note 8, 60.01[5].38. Id. 60.0117].39. Id. 60.0118] (citations omitted).

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equitable powers of the court for relief when that person has beennegligent in asserting his claim or when the circumstances are suchthat it would be unjust for the claim to be asserted against theadverse party.4"

Hazel-Atlas Glass Co. v. Hartford-Empire Co."' is the leadingcase in the interpretation of the concept of fraud upon the court.The case was referenced specifically in the Committee Note to the1946 amendments to Federal Rule 60(b). 42 In Hazel-Atlas, a fraud-ulent article was used by the patentee Hartford-Empire to secure agovernment patent on a new industrial process. In earlier litigationbetween the parties, Hartford-Empire referenced the spurious arti-cle in its brief, supporting a claim that Hazel-Atlas had infringedon its patent. The Third Circuit, "[q]uoting copiously from the ar-ticle," agreed with Hartford-Empire that Hazel-Atlas had in-fringed on its patent.43 Ten years after the Third Circuit had ac-knowledged Hartford-Empire's infringement claim and 15 yearsafter the inception of the fraudulent article, facts of the article'sforgery came to light in federal antitrust actions against Hartford-Empire.44 Although Hazel-Atlas had made an effort to ferret outthe true facts concerning the forged article in the original case,45

the Supreme Court, in dealing with the issue of whether Hazel-Atlas had been diligent in uncovering the fraud, noted that

tampering with the administration of justice in the manner indis-putably shown here involves far more than an injury to a singlelitigant. It is a wrong against the institutions set up to protectand safeguard the public, institutions in which fraud cannot com-placently be tolerated consistently with the good order of society.Surely it cannot be that preservation of the integrity of the judi-cial process must always wait upon the diligence of litigants.41

Professor Moore and Professors Wright and Miller employ thelanguage above as support for the concept that relief for fraudupon the court is not barred by the limitation of laches.47 Several

40. See BLACK'S LAW DICTIONARY 787 (5th ed. 1979). See generally R. ARMSTRONG & W.DONAHUE, FLORIDA CHANCERY JURISPRUDENCE 40-42 (1927).

41. 322 U.S. 238 (1944).42. See 6A MOORE'S, supra note 8, 60.01[8].43. Hazel-Atlas, 322 U.S. at 241.44. Id. at 243.45. Id. at 242-43.46. Id. at 246.47. See 7 MOORE'S, supra note 8, 60.33, at 355-56; C. WRIGHT & A. MILLER, supra note

14, § 2870, at 249-51.

RELIEF FROM FRAUD

federal cases acknowledge that a true showing of fraud upon thecourt would not be barred by the doctrine of laches.4 s

In contrast, where a party brings an independent action basedupon extrinsic fraud, laches can prevent the assertion of the wrongby the aggrieved party. "[T]he power of a defrauded court to grantrelief is a sweeping plenary power that is not subject to any rigidtime limitation as is a motion under [Rule] 60(b)(3) . . . or tolaches of a party, which normally precludes relief in an indepen-dent action . . . . 49

An excellent summary of the time limitations for bringing an ac-tion for fraud under the various provisions of Rule 60 was given bya federal district court in Lockwood v. Bowles.50 The plaintiffs inthat case asserted that a decree denying kinship, and hence a sharein an estate, entered fourteen years earlier was procured by fraud:

Perhaps recognizing that relief for fraud was barred by the oneyear limitation period of Rule 60(b)(3) and that relief in an inde-pendent action was barred by the doctrine of laches and by thenature of the fraud alleged, defendants' primary argument hasbeen that they are entitled to relief for "fraud upon the court"under Rule 60(b). There is no time limitation which would barthis court from granting such relief. Neither the one-year limita-tion period nor the doctrine of laches bars the granting of relieffor fraud upon the court. A court may "at any time set aside ajudgment for after-discovered fraud upon the court."

The court found that the alleged fraudulent testimony of a physi-cian in the original proceeding was only intrinsic fraud which didnot meet the requirements for bringing an independent action, orconstitute a fraud upon the court.52 Thus the action could not be

48. Toscano v. Commissioner, 441 F.2d 930, 936-37 (9th Cir. 1971); Root Ref. Co. v.Universal Oil Prods. Co., 169 F.2d 514, 522 (3d Cir. 1948); Great Coastal Express, Inc. v.International Bhd. of Teamsters, 86 F.R.D. 131, 137 (E.D. Va. 1980).

49. 7 MOORE'S, supra note 8, 1 60.33, at 356. Professor Moore, in discussing that an inde-pendent action for extrinsic fraud continued to be allowed under the saving clause, notedthat "the time limitation upon such an action for relief from a federal judgment normally islaches." Id. T 60.33, at 350 (footnote omitted). See also Carr v. District of Columbia, 543F.2d 917, 926 n.76 (D.C. Cir. 1976); In re Casco Chem. Co., 335 F.2d 645, 652 (5th Cir. 1964);C. WRIGHT & A. MILLER, supra note 14, § 2868, at 241 (doctrine of laches applicable toindependent action); cf. King v. Dekle, 43 So. 586 (Fla. 1907) (laches a bar to bill in equityto set aside judgment).

50. 46 F.R.D. 625 (D.D.C. 1969).51. Id. at 631 (footnotes omitted) (quoting Dausuel v. Dausuel, 195 F.2d 774, 775 (D.C.

Cir. 1952)).52. Lockwood, 46 F.R.D. at 633.

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brought after the one-year limitation had expired. The court alsonoted that even if an independent action could be sustained, lacheswould bar it.5 3

B. Court Action Sua Sponte

In setting aside a judgment for fraud upon the court, a court canact without an independent action being brought by a party to cor-rect the injustice perpetrated on the legal institution. For example,in Martina Theater Corp. v. Schine Chain Theaters, Inc.,54 theSecond Circuit said that if a proper case of fraud on the court hadbeen presented, a "defrauded district court would have been em-powered to take action sua sponte to expunge the judgment. '' 55 Bycontrast, for extrinsic fraud, a court may not act on its own accord,but must wait for the aggrieved party to institute an independentaction that is equitable in nature.5

The Florida rule has also received a similar, although nonjudicialinterpretation. One article on Florida Rule 1.38(b), the predecessorof the current Rule 1.540(b), noted, " 'Fraud upon the court' maybe established by an independent action, by motion or otherwise.The exercise of the power is not dependent on any particular pro-cedural steps being taken to establish it. The court may act suasponte.

' '57

A conclusion to be drawn from these authorities is that thephrase "to set aside a judgment for fraud upon the court," at leastunder the federal rule, contemplates additional powers and proce-dures beyond the ability of a court to entertain an independentaction.

V. FLORIDA RULE 1.540(b): APPELLATE COURT INTERPRETATIONS

The latest and highest interpretation of the saving clause of

53. Id. at 630.54. 278 F.2d 798 (2d Cir. 1960).55. Id. at 801; see also Universal Oil Prods. Co. v. Root Ref. Co., 328 U.S. 575, 580 (1946)

(federal courts have inherent power to investigate whether a judgment was obtained byfraud); United States v. ITT, 349 F. Supp. 22, 28 (D. Conn. 1972) (court can consider fraudclaim without intervention of nonparties), afl'd sub nom. Nader v. United States, 410 U.S.919 (1973).

56. 7 MOORE'S, supra note 8, 1 60.33, at 357 n.44 ("[If the 'fraud' were not upon thecourt and no party or third person with a legal interest desired to have the judgment setaside, a justiciable case or controversy would not be presented and for this and practicalconsiderations the court should not intermeddle with the judgment.").

57. Barns & Mattis, supra note 4, at 293 (emphasis added).

RELIEF FROM FRAUD

Florida Rule 1.540(b) is in the case of DeClaire v. Yohanan.5 TheFlorida Supreme Court was forced to decide two primary issuesrelated to Rule 1.540: (1) the interpretation of the language of therule; and (2) the substantive issues underlying the language. Thecase came to the Florida Supreme Court from the Fourth DistrictCourt of Appeal 9 and was reviewed under the court's conflict ju-risdiction." This case raised the substantive issues, while a casefrom the Third District Court of Appeal, Brown v. Brown, 1 al-though not directly before the court for review, lurked in the inter-pretive shadows of the language of Rule 1.540(b). In the Browndecision, the Third District evaluated prior Florida appellate cases.Brown and the appellate cases it reviewed illustrate the develop-ment of the interpretation of the saving clause in Florida.

A. Brown v. Brown

The issue confronting the supreme court in interpreting the lan-guage of the rule was whether an independent action could bemaintained by a party only for fraud upon the court or whether anindependent action could be brought for other reasons as well.This issue was never specifically identified in DeClaire but wasnevertheless addressed at least sub silento by its rejection ofBrown. The supreme court noted that the Brown decision raised "amajor public policy question relating to how final judgments maybe attacked and set aside. ''6 2

In Brown, the Third District undertook a thorough analysis ofFederal Rule 60(b) in order to determine what it considered to bethe proper reading of Florida Rule 1.540(b). 3 The district courtconducted this analysis because it concluded that, in light of the

58. 453 So. 2d 375 (Fla. 1984).59. Yohanan v. deClaire, 421 So. 2d 551 (Fla. 4th DCA 1982), rev'd, 453 So. 2d 375 (Fla.

1984).60. DeClaire, 453 So. 2d at 376. The supreme court exercised jurisdiction pursuant to

FLA. CONST. art. V, § 3(b)(3), which allows the court to "review any decision of a districtcourt of appeal that . . . expressly and directly conflicts with a decision of another districtcourt of appeal or of the supreme court on the same question of law." The cases that thesupreme court found in conflict with the Fourth District in DeClaire were Truitt v. Truitt,383 So. 2d 276 (Fla. 5th DCA 1980); Erhardt v. Erhardt, 362 So. 2d 70 (Fla. 2d DCA 1978),cert. denied, 368 So. 2d 1366 (Fla. 1979); August v. August, 350 So. 2d 794 (Fla. 3d DCA1977); and Kimbrough v. McCranie, 325 So. 2d 70 (Fla. 1st DCA 1976).

61. 432 So. 2d 704 (Fla. 3d DCA 1983). Brown was overruled by the supreme court inDeClaire, 453 So. 2d at 381.

62. See DeClaire, 453 So. 2d at 380; see also infra notes 112-20 and accompanying text.63. See supra notes 14-39 and accompanying text for an analysis similar to that under-

taken in Brown.

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history of the adoption of the Florida rule, interpretations of Rule60(b) by federal courts were persuasive in reading the Florida rule.This conclusion was supported by considerable precedent."" Infact, the supreme court in DeClaire noted that the Florida rule is"modeled on Federal Rule of Civil Procedure 60 . . [and] is'[s]ubstantially the same as Federal Rule 60.' "

On the basis of its analysis of the federal rule, the Third Districtconcluded that the Florida rule was derived from its federal coun-terpart.66 It also concluded that the purpose explained and prece-dent cited in the "federal cases which have construed Rule 60(b)leave no doubt as to its meaning-any extrinsic fraud, not merely'fraud upon the court,' is a basis for an independent action underthe rule." 7

The history of the federal rule and its influence on the Floridarule lent ample support, in the Brown decision, to the propositionthat fraud as the basis of an independent action and relief forfraud upon the court are separate powers retained in the savingclause of Rule 1.540(b). The district court went one step furtherand conducted a linguistic analysis of the saving clause. It con-cluded that the phrase "or to set aside a judgment or decree forfraud upon the court" is disjunctive of the other powers retained.Its position was based upon "well-accepted rules of construction"and upon the intervening clause in the federal rule. 8

With all of the support it could muster, the Third District inBrown boldly stated that "our reading of Rule 1.540(b) is that itpermits an independent action to be [brought] upon allegations ofextrinsic fraud or an independent action to set aside the judgmentupon allegations of fraud upon the court."6 9 This holding by the

64. Brown, 432 So. 2d at 706-07.65. DeClaire, 453 So. 2d at 377 (quoting In re Florida Rules of Civil Procedure 1967

Revision, 187 So. .2d 598, 631 (Fla. 1966)). See also Brown, 432 So. 2d at 706-07, and casescited therein for the proposition that interpretations of the Florida rule should generallyconform with the federal rule.

66. See cases discussed in Brown, 432 So. 2d at 706-07.67. Id. at 708.68. Id. at 710-11.69. Id. at 714 (emphasis in original). While the conclusion of the Brown court appears to

be correct to the extent that it finds separate powers in the saving clause for entertaining anindependent action for extrinsic fraud and setting aside a judgment for fraud upon thecourt, it may still tend to misread the rule. The Third District apparently reads the rule toallow a court to entertain an independent action to relieve a party (1) from a judgment,decree, order, or proceeding, or (2) to set aside a judgment or decree for fraud upon thecourt. This view of the Third District's reading is drawn from the court's understandingthat the rule

preserves two distinct and separate powers of a court over an independent ac-

RELIEF FROM FRAUD

court was bold because of a line of district court of appeal cases,including its own,7" that had created what the Third District titled"The Mischief of Alexander. '71

B. Mischievous Alexander

The Third District in Brown examined the case of Alexander v.First National Bank72 and the "[d]escendants of Alexander[which] abound throughout the state. T7 The court criticized Alex-ander and its progeny for the implied, and in one case explicit,7 4

holding that the saving clause of Rule 1.540(b) only provides relieffor fraud upon the court and not for other types of fraud. The lan-guage of Alexander that created the "mischief" of which the ThirdDistrict was so critical reads as follows:

Perhaps as a means of protecting the integrity of the court sys-tem, the [Florida] Supreme Court preserved one historic methodof attacking a final judgment. The rule preserves:

"... an independent action to relieve a party from a judg-ment. . . or to set aside a judgment. . . for fraud upon thecourt."

The appellants' counterclaim clearly did not entitle them to re-lief from the final judgment ... on any of the numbered groundsspecified in Rule 1.540(b), RCP. As demonstrated above, such re-lief is dependent on a post-judgment motion in the original ac-

tion-the first being the power to entertain an independent action "to relieve aparty from a judgment, decree, order or proceeding," and the second, the power toentertain an independent action "to set aside a judgment for fraud upon thecourt."

Id. at 710. A more correct reading might be that a court's power to set aside a judgment forfraud upon the court is not limited to an independent action, and that all of the clauses ofthe federal rule, and hence the Florida rule, should be read disjunctively. See 7 MooRE'S,supra note 8, 60.33, at 351 ("The third saving clause states that the Rule does not limitthe power of a court 'to set aside a judgment for fraud upon the court.' "). See also supranotes 54-57 and accompanying text for the proposition that an independent action is notnecessary to set aside a judgment for fraud upon the court.

70. See August v. August, 350 So. 2d 794 (Fla. 3d DCA 1977); Sottile v. Gaines Constr.Co., 281 So. 2d 558 (Fla. 3d DCA 1973), cert. denied, 289 So. 2d 737 (Fla. 1974). In Brown,432 So. 2d at 715, the Third District Court "recede[d] from dicta" in these cases "that fraudupon the court is the exclusive ground upon which an independent action . . . may bebased."

71. Brown, 432 So. 2d at 711.72. 275 So. 2d 272 (Fla. 4th DCA 1973).73. Brown, 432 So. 2d at 712.74. Erhardt v. Erhardt, 362 So. 2d 70 (Fla. 2d DCA 1978), cert. denied, 368 So. 2d 1366

(Fla. 1979).

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tion. Appellants did not avail themselves of this procedure. Theonly other procedural means available to them for relief fromjudgment (aside from an appeal) was an independent actiongrounded on "fraud upon the court". The question before us,therefore, narrows to this. Did the appellants' counterclaim, as anindependent action, sufficiently allege facts showing that a fraudon the court had occurred in the prior action? 5

Brown rejected the creative abbreviation given the saving clauseby the Fourth District and the reading of but "one historicmethod" for attacking a judgment under the saving clause. Theproblem that the Brown court found with Alexander was thefollowing:

By distinguishing only between "fraud upon the court" and allother fraud, whether extrinsic or intrinsic, the [Fourth District]arrives at the conclusion, totally unsubstantiated by the deriva-tion, history, purpose and language of Rule 1.540(b), that (1) theexclusive means for attacking a judgment on a ground other thanfor fraud upon the court is by "motion filed in the same proceed-ing in which the questioned judgment was entered," and (2) theexclusive ground for an independent action attacking the judg-ment is "for fraud upon the court." '

Indeed Brown did not argue with the result reached in Alexan-der or the cases that had followed it. In fact the Third Districtmade it clear that the results of each of those cases could be ac-commodated under its reading of the rule that an independent ac-tion could be brought for extrinsic fraud, not just for fraud uponthe court."

C. Erhardt v. Erhardt

Another case that Brown criticized is Erhardt v. Erhardt.7e

While not specifically citing Alexander or its offspring, the SecondDistrict clearly stated in Erhardt that it saw only fraud upon thecourt as providing relief under the rule's saving clause:

75. Alexander, 275 So. 2d at 273-74 (emphasis and editing of Rule 1.540(b) in original).76. Brown, 432 So. 2d at 712.77. Id. at 712-13. The court felt that the circumstances raised in the cases constituted

intrinsic fraud and hence did not qualify for an independent action after the one-year pe-riod for a motion had expired.

78. 362 So. 2d 70 (Fla. 2d DCA 1978), cert. denied, 368 So. 2d 1366 (Fla. 1979).

RELIEF FROM FRAUD

Appellee contends that even though the trial court did not findthat appellant had committed fraud upon the court he could stillbe granted relief under the last sentence of Rule 1.540(b). Appel-lee argues that this final sentence empowers a trial court to enter-tain petitions for relief seeking either (1) "[relief] from a judg-ment, decree, order, or proceeding" or (2) "to set aside ajudgment or decree for fraud upon the court." In other words ap-pellee views the two portions of the final sentence disjunctivelyand finds two separate grounds for relief, one of which requires ashowing of fraud and one of which does not. We reject this rea-soning. We read the final sentence to provide only one basis forrelief and that requires a showing of fraud upon the court.7 9

D. "Blurring" a Distinction

The conflict created by the decisions in Brown, Alexander, andErhardt may be more semantic than real. The holding of Brownwas that an independent action could be brought both for extrinsicfraud and for fraud upon the court.80 The problem the Browncourt saw with Alexander and the others was a "failure to distin-guish intrinsic from extrinsic fraud and to distinguish fraud uponthe court (a very special type of extrinsic fraud) from all other ex-trinsic fraud. . . .The blurring of any distinction . . . is, as wehave already said, a misreading of the rule. '8 ' However, the spe-cific results reached in Alexander and its lineage could have beenreached under the Brown holding. The impact of Alexander andthe cases following it is that extrinsic fraud is lumped togetherwith fraud upon the court. The problem with this "blurring of anydistinction" stems from the fact that there are differences in theapplication of these separate concepts of the saving clause, such aslack of a limitation for laches and the ability of a court to act suasponte when confronted with fraud upon the court.2

It is significant to note that, prior to the supreme court's deci-sion in DeClaire, there was at least a genesis of acceptance growingfor the Third District's position in Brown. The Second DistrictCourt of Appeal, the court that in Erhardt specifically read onlyone ground for relief in the rule's saving clause, later endorsed

79. Id. at 71 (emphasis in original). Brown did not quibble with the holding of Erhardt,only with its interpretation of the language of the rule. Brown, 432 So. 2d at 713.

80. Brown, 432 So. 2d at 714.81. Id. at 712-13.82. See supra notes 40-57 and accompanying text.

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Brown's reading of separate powers in the saving clause:

[W]e agree with Judge Pearson's analysis in Brown where he con-cluded that the last sentence of rule 1.540(b) must be read in thedisjunctive and refers to both the general power of a court to en-tertain an independent action to relieve a party from a judgmentand the power of a court to set aside a judgment for fraud uponthe court.83

Thus, in Westcott v. Wescott, the Second District receded from its"dicta in Erhardt that there is only one basis for relief under thefinal sentence of rule 1.540(b), to wit, fraud upon the court."s4

In a recent Fifth District Court of Appeal case, an ex-spouse wasseeking to have a property conveyance that was part of a divorcedecree set aside under the motion procedure allowed by Rule1.540(b)(3), but in a court different from the one rendering theoriginal judgment. The majority refused to allow a motion in a dif-ferent court, but Judge Sharp stated in dissent, "I agree with theview expressed by our sister court in Brown v. Brown . . . thatwould allow an independent suit in this case [for extrinsicfraud]."8

VI. THE FLORIDA SUPREME COURT'S INTERPRETATION OF THE

SAVING CLAUSE OF RULE 1.540(b)

In DeClaire, the Florida Supreme Court accepted jurisdictionover the Fourth District Court of Appeal case as being in conflictwith Erhardt and other appellate court cases that had their foun-dation in Alexander.

A. Lower Court Decisions in DeClaire

In 1980, Donna deClaire Yohanan petitioned the Circuit Courtfor Palm Beach County to set aside a 1977 divorce decree whichincorporated a property agreement with her former husband,George F. deClaire. Yohanan's petition was filed pursuant to Rule1.540(b) and claimed that deClaire had misled the court by filing afraudulent financial affidavit in the original dissolution proceed-

83. Wescott v. Wescott, 444 So. 2d 495, 496 (Fla. 2d DCA 1984) (emphasis in original).84. Id. at 498 n.2.85. Cobourn v. Cobourn, 436 So. 2d 284, 286 (Fla. 5th DCA 1983) (Sharp, J., dissenting)

(citation omitted). The majority held that relief within the one-year period allowed by Rule1.540(b)(3) could only be granted by the trial court rendering the initial judgment.

RELIEF FROM FRAUD

ings, constituting a fraud upon the court." The affidavit was filedin the original proceeding in accordance with Rule 1.611 of theFlorida Rules of Civil Procedure. 7

The trial court agreed with Yohanan that deClaire had indeedmisrepresented his financial circumstances in the divorce proceed-ing three years earlier. However, the court denied Yohanan's peti-tion to have the 1977 divorce decree and attendant property settle-ment set aside.88 The basis for this denial was that Yohanan knewor should have known of her former husband's true net worth, andthat information could or should have been brought to the trialcourt's attention. The court reached this conclusion becauseYohanan had previously co-signed financial statements presentedto a bank for the purpose of obtaining a loan. In addition, thetrial court held that Yohanan did not "timely contest the propertysettlement agreement within one year. '

On appeal, the Fourth District Court first confronted the issueof whether deClaire's action of filing a false financial affidavit con-stituted fraud on the court."' The court felt that, unless deClaire'saction could be categorized as "fraud upon the court," Yohanan'sindependent action would be "untimely."9 The court quoted fromits own much-cited opinion in Alexander 3 to explain the positionthat the concept of "fraud upon the court" should be narrowly

86. DeClaire, 421 So. 2d at 552.87. The pertinent part of FLA. R. Civ. P. 1.611(a) reads as follows:

Financial Statement. Every application for temporary alimony, child support,attorneys' fees or suit money shall be accompanied by an affidavit specifying theparty's financial circumstances. . . . If no application for a temporary award ismade, the parties shall make and serve the affidavits at least 10 days before thetrial if permanent alimony, child support, attorneys' fees or suit money is sought.

88. DeClaire, 421 So. 2d at 552. In fact the district court noted "[deClairel underesti-mated his net income by approximately $1,775 per month and financial statements submit-ted to various banks demonstrated a much greater net worth than that shown by [his] finan-cial affidavit." Id.

89. DeClaire, 453 So. 2d at 376. The difference between the financial statementsYohanan signed for the loans and the net worth sworn to in the divorce proceeding wasapproximately $500,000. DeClaire, 421 So. 2d at 552.

90. DeClaire, 421 So. 2d at 552. The trial court found that "changed circumstances justi-fied an increase in the child support award" and granted Yohanan costs and fees. GeorgedeClaire cross-appealed the increase in child support and the award of costs to Yohanan.The district court upheld the trial court on these two points. Id. at 552-53. The action be-tween deClaire and Yohanan was subject to additional appellate proceedings, which are notrelevant to the issues of this comment. See Yohanan v. deClaire, 435 So. 2d 913 (Fla. 4thDCA 1983).

91. DeClaire, 421 So. 2d at 553.92. Id.93. See supra notes 72-75 and accompanying text.

19851


construed so that it will not be used to usurp the policy favoringthe finality of judgments.' The court then went on to state that"the public policy favoring the termination of litigation must yieldin the present case to the public policy favoring the filing of accu-rate financial affidavits in dissolution actions." 5

The Fourth District Court concluded that Rule 1.611 wasdesigned to benefit the administration of justice by requiring par-ties to file information with a trial court in order to expedite di-vorce proceedings.96 It reasoned that deClaire's "fraudulent affida-vit constituted fraud upon the court because a trial court cannotproperly determine what to award the parties or whether to ap-prove a property settlement agreement without a true understand-ing of the parties' financial condition. '97 The district court soughtto implement an enforcement mechanism for Rule 1.611 by hold-ing that

when a trial court determines a financial affidavit required byRule 1.611 has been filed fraudulently .... the offending partyhas committed fraud on the court and the one year time limit inFlorida Rule of Civil Procedure 1.540(b) will not bar an indepen-dent action to set aside a final judgment of dissolution.9

The district court reversed the trial court and remanded with in-structions to vacate the property settlement agreement and con-duct further proceedings.99

B. The DeClaire Interpretation of the Saving Clause-OnlyOne Basis for Relief

DeClaire gave the Florida Supreme Court the opportunity to ridthe law of the "Mischief of Alexander." Its decision could haverestored to the saving clause an interpretation that recognized twoseparate powers retained by the courts: one, to entertain an inde-

94. DeClaire, 421 So. 2d at 553.95. Id.96. See supra note 87 for text of rule.97. DeClaire, 421 So. 2d at 553. The Fourth District Court used Rule 1.611 to support

the setting aside of the property settlement. However Rule 1.611 does not refer to propertysettlements, only to "temporary [or permanent] alimony, child support, attorneys' fees orsuit money." See supra note 87 for text of Rule 1.611(a). Where a property settlement isjoined with another of these elements in a dissolution proceeding, it would seem that thepolicy behind the rule should continue to have vitality.

98. DeClaire, 421 So. 2d at 553.99. Id.

RELIEF FROM FRAUD

pendent action to relieve a party from a judgment, order, or pro-ceeding; and two, to set aside a judgment for fraud upon the court.An analysis of the supreme court's opinion reveals that the inter-pretation of language of the saving clause continues to beunsettled.

The court began its review of the Fourth District's holding indeClaire by setting forth historical definitions of extrinsic and in-trinsic fraud. 100 The court fell into the same trap as the Alexanderline of cases, that is, the "failure to distinguish intrinsic from ex-trinsic fraud and to distinguish fraud upon the court (a very spe-cial type of extrinsic fraud) from all other extrinsic fraud."' 1 1 Thesupreme court said, "At the outset we must distinguish betweenextrinsic fraud and intrinsic fraud because only extrinsic fraudmay constitute fraud on the court."' 012 While its definitions of in-trinsic fraud and extrinsic fraud comport with recognized defini-tions, the court failed to label fraud upon the court as a uniquespecies of fraud and continued the "blurring of any distinction"'0 3

between extrinsic fraud and fraud upon the court.In one part of the opinion, the court apparently wanted to delin-

eate clearly the time limits controlling when actions for relief fromjudgments could be brought. In this effort to assist practitionersand the courts, the supreme court set forth categories to provide "abetter understanding, [of] the circumstances under which a judg-ment may be challenged." After listing the circumstances underwhich a judgment may be reopened in one year, the court providedthat there would be no time limitation under Rule 1.540(b) or anindependent action in several situations, including "[e]xtrinsicfraud which prevents a party from having an opportunity to pre-sent his case in court.'1 0 4

The court, however, continued to baffle a reader who might bepersuaded that extrinsic fraud and fraud upon the court are differ-ent, saying, "The rule does not change the existing definitions ofintrinsic and extrinsic fraud or change the type of conduct whichconstitutes fraud upon the court."' 0 5 The court gave no examplesof what conduct it considered fraud upon the court, except the def-initions of extrinsic fraud it had quoted earlier.

100. DeClaire, 453 So. 2d at 376-77.101. Brown, 432 So. 2d at 712.102. DeClaire, 453 So. 2d at 376-77.103. Brown, 432 So. 2d at 713.104. DeClaire, 453 So. 2d at 378-79.105. Id. at 379.

1985]


C. Intrinsic Fraud-Not a Basis for Relief

The substantive holding of the DeClaire decision also requirescomment, as it too has left some questions unanswered. Becausethe court continued the general rule that only extrinsic fraud, alsocalled "fraud upon the court," qualifies for an independent action,it continued to rely on labels for when an independent action canbe brought.

After tracing the development of the Florida rule, the court reaf-firmed that only extrinsic fraud/fraud upon the court could qualifyfor an independent action after the one year period allowed inRule 1.540(b)(3) had passed. 0 6 Scrutinizing the fraudulent affida-vit of deClaire in light of Rule 1.540(b) and the definitions that ithad given, the court reasoned that the affidavits "were part of therecord in this case. The issue of [deClaire's] net worth was, there-fore, a matter before the court for resolution and could have beentried. ' 10 7 The court expressed concern that if deClaire's actionswere allowed to be considered fraud upon the court,

[iut would permit any final judgment to be attacked at any time ifa party could allege that an intentional misrepresentation wasmade by affidavit, deposition, or testimony presented in the case.By so expanding the definition of fraud upon the courts, wewould also be substantially expanding the grounds on which finaljudgments may be attacked.08

The issue perceived by the supreme court was that the approachused by the Fourth District would expand the avenues by whichfinal judgments could be brought under review via the savingclause. The court's concern for protecting the finality of judgmentswas expressed by the ruling that factual matters that could havebeen attacked in the original trial proceedings must be contestedunder Rule 1.540(b)(3) within one year of the entry of final judg-ment. The following interpretation of the rule was clearly set forthin DeClaire:

When an issue is before a court for resolution, and the com-plaining party could have addressed the issue in the proceeding,

106. Id. at 378-79. Because the Florida court has given "extrinsic fraud" and "fraudupon the court" interchangeable definitions, the term extrinsic fraud will be used herein asdefined by the federal courts.

107. Id. at 380.108. Id.

RELIEF FROM FRAUD

such as attacking the false testimony or misrepresentationthrough cross examination and other evidence, then the improperconduct, even though it may be perjury, is intrinsic fraud and anattack on a final judgment based on such fraud must be madewithin one year of the entry of the judgment. 09

D. The Court's Treatment of Brown

The supreme court's treatment of Brown adds to the bewilder-ment of one attempting to decipher the saving clause of Rule1.540(b). The cases which the court found conflicting with theFourth District's decision in deClaire were the same cases thatBrown had criticized for their implicit and explicit readings thatthe saving clause only allowed a court to set aside a judgment forfraud upon the court.110 The supreme court analyzed the cases thatwere in conflict with deClaire mainly in light of the holdings of thecases; that is, an independent action cannot be brought for relieffrom intrinsic fraud after the one-year limitation for filing motionsin the original proceeding under Rule 1.540(b)(3) has expired.'11

The court then reviewed the Brown decision and concluded that"the Third District did not fully agree with the reasoning of thedecisions in the [conflicting] cases." '112 It then noted the Browncourt's legal position "that rule 1.540(b) 'permits an independentaction to be relieved from a judgment upon allegations of extrinsicfraud or an independent action to set aside the judgment upon al-legations of fraud upon the court.' "113 The court cast the resultreached in Brown as, "although the wife's allegations did not showfraud upon the court, the allegations did establish extrinsic fraudwhich would allow relief outside the one-year limitations pe-riod."'" 4 However, the Brown court expressly did not argue withthe results reached in the cases which the supreme court found inconflict with deClaire. In fact, it found their results very supporta-ble under the theory that only extrinsic fraud, and not intrinsic

109. Id. (emphasis added).110. See supra note 60 for the conflicting cases. The court did not find conflict with

Alexander, as it was a Fourth District case and had in fact been cited approvingly indeClaire, 421 So. 2d at 551. See the Brown treatment of the conflicting cases and Alexander,432 So. 2d at 711-14.

111. DeClaire, 453 So. 2d at 378-79.112. Id. at 379-80.113. Id. at 380 (quoting Brown, 432 So. 2d at 714 (emphasis in original)).114. DeClaire, 453 So. 2d at 380.

1985]


fraud, will support an independent action. 1 5 Brown only divined inthe saving clause dual powers of a court to relieve an unjustjudgment.

The most opaque part of the supreme court's treatment ofBrown came when it concluded that "[t]he Brown decision and theFourth District's [deClaire] decision .. .raise a major public pol-icy question relating to how final judgments may be attacked andset aside.""" The court felt that to allow Brown and the FourthDistrict's reading of the saving clause to stand would substantiallybroaden the grounds upon which a judgment could be attackedand therefore would not accord judgments the finality that theydeserve."1

7

The court then quashed the Fourth District's decision and "alsodisapprove[d] the Third District's decision in Brown to the extentthat it conflicts with our decision in the instant case.""5 Thecourt reasonably explained the public policy issue it perceived: ac-cording judgments finality when the factual matters were tried anddetermined. However, the public policy problem that the courtperceived to be raised by Brown, and hence the extent of the con-flict between Brown and the supreme court's decision in DeClaire,are completely unelucidated.

A comparison of the substantive holdings in DeClaire andBrown reveals no real conflict between the two cases. The rule ofDeClaire is that an independent action will only be available forextrinsic fraud. Yet the court found that the filing of the false fi-nancial affidavits by deClaire in the original divorce proceedingconstituted "intrinsic fraud and .. . there was no fraud on thecourt in this case."" 9

The view expressed by DeClaire appears to be no more restric-tive than the holding of Brown. Brown clearly supported the posi-tion that only extrinsic fraud, in addition to fraud upon the court,would allow an independent action. 20 This position, coupled with

115. Brown, 432 So. 2d at 711-14.116. DeClaire, 453 So. 2d at 380.117. Id.118. Id. at 381 (emphasis added).119. Id. at 380.120. Brown, 432 So. 2d at 711-12. The court distinguished this from "intrinsic fraud

which historically would not support an action attacking the judgment, and which thereforecould only be considered when contained in a timely-made motion under the rule." Id. at712 (footnotes omitted) (emphasis in original). Some of the footnotes of Brown may havegiven the supreme court some uneasiness. In one of the footnotes appended to the abovequotation, the Brown court pointed out that the intrinsic-extrinsic distinction has been

RELIEF FROM FRAUD

Brown's agreement with the holdings reached in the conflictingcases that were impliedly upheld by the supreme court inDeClaire, leads to the conclusion that there is no real substantivedisagreement as to what conduct allows an independent action tobe brought after the one-year limitation.

Although the theoretical conflict between Brown and DeClaire isundefined, and there is no apparent substantive conflict betweenthe cases, the conclusion must be drawn that the supreme courthas blended the terms "extrinsic fraud" and "fraud upon thecourt" and the terms are now to be used interchangeably in Flor-ida. Because fraud upon the court, as the term has been developedin federal case law, "is typically confined to the most egregiouscases, ' 121 one can only hope that such a situation will not confrontthe Florida court. However, the failure of the Florida SupremeCourt to distinguish the type of fraud that can be raised by inde-pendent action from that deemed to be fraud upon the court leavesa question as to whether the supreme court will recognize the sub-stantive and procedural distinctions 2 when the separate fraudsare raised to assail a judgment.

E. Other Equitable Grounds for Setting Aside JudgmentsUnder the Saving Clause

Despite the arguably imprecise reading of the language of thesaving clause, the court's ruling that an independent action is onlyavailable for extrinsic fraud is easily discerned. However, the ra-tionale that the court used in arriving at this ruling should be

dropped under the (b)(3) portion of the Florida rule allowing for a motion within one year.It further noted that "Professor Moore is of the view that the intrinsic-extrinsic distinctionshould not even apply to the independent action." Id. at 712 n.5. Footnote 4, however,seems to most clearly express the Third District's position:

As we have said, the final sentence of the first paragraph of Rule 1.540(b) wasintended to preserve all former powers of the court. Since, because of the doctrineof finality, courts were not previously empowered to interfere with judgments al-leged to have been procured through intrinsic fraud, they are not empowered todo so under the saving clause of the rule.

Id. at 712 n.4.This interpretation may itself be too restrictive. See infra notes 134-47 and accompanying

text for the proposition that intrinsic fraud was recognized as a ground for relief by anindependent action. See also infra notes 123-33 and accompanying text for the propositionthat grounds other than fraud were recognized as being available for relief by an indepen-dent action.

121. Great Coastal Express, Inc. v. International Bhd. of Teamsters, 675 F.2d 1349, 1356(4th Cir. 1982).

122. See generally 7 MOORE'S, supra note 8, T 60.33; C. WRIGHT & A. MILLER, supra note14, § 2870.

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examined.First, the court ventured a cursory analysis of the ancillary legal

writs and equitable bills that were specifically abolished by therule.12 The court then asserted that "[p]rior to the adoption ofrule 1.540(b), none of the stated grounds for a motion to set aside ajudgment, with the exception of extrinsic fraud presented in an ac-tion in equity, could be used as the basis for seeking relief from ajudgment." '124 This statement by the court fails to recognize thatsome of the grounds now available by motion were in fact cogniza-ble in independent equity actions. One commentator, writing priorto the institution of the current rule, stated:

[A] bill in equity will lie to relieve against a judgment at law onany ground which clearly proves it to be against conscience to ex-ecute such judgment, and of which the injured party could nothave availed himself in a court of law, or of which he might haveavailed himself at law, but was prevented by fraud, accident ormistake without fault on his part or that of his agents.125

The court thus diverged from prior federal case law that ac-knowledges that an independent action can be brought under thecompanion federal rule to correct a mistake. In West Virginia Oil& Gas Co. v. George E. Breece Lumber Co., 126 the Fifth Circuit wasfaced with deciding whether a "compromise agreement and a judg-ment based thereon" containing descriptions to property differentfrom what the parties thought they were originally agreeing tocould be corrected.12 7 The court found that the mistake was not aclerical mistake under Rule 60(a), and since over a year hadpassed, the action could not be considered under Rule 60(b)(1).12

1

Relying on the United States Supreme Court decision in Wiscon-sin v. Michigan,'29 the court held

123. DeClaire, 453 So. 2d at 377-78. This comment too will refrain from an in-depthanalysis of this part of the rule. See 7 MOORE'S, supra note 8, 1 60.12-.16, for a completeanalysis, and Willis, supra note 6, for some thoughts on these remedies in Florida practice.See also Bankers Mortgage Co. v. United States, 423 F.2d 73 (5th Cir.), cert. denied, 399U.S. 927 (1970).

124. DeClaire, 453 So. 2d at 378.125. 1 R. WHITEHOUSE, EQUITY PRACTICE, STATE AND FEDERAL § 152 (1915) (emphasis

added) (footnote omitted).126. 213 F.2d 702 (5th Cir. 1954).127. Id. at 703.128. Id. at 705-06.129. 295 U.S. 455 (1935).

RELIEF FROM FRAUD

that a court of equity has the jurisdiction and the right in an in-dependent proceeding to protect a litigant from the effects, so faras equitably possible, of a judgment entered by mutual mistake ofthe parties, where it is shown that the party seeking relief is freefrom fault or negligence.'30

If, as the Florida Supreme Court says, "[t]he Florida rule wasnot intended to restrict the existing [equitable] remedies,''1 31 canan independent action be brought for mistake or accident, whichwere once recognized grounds in Florida? 132 Or, can an indepen-dent action only be brought for "[e]xtrinsic fraud which prevents aparty from having an opportunity to present his case in court"? 133

The plain language of the case would seem to indicate the latterproposition. However, the court, in a proper case, may want to lib-eralize its narrow reading of the saving clause in order to recognizeall of the grounds that qualified in equity for an independentaction.

VII. THE COURT'S INTRINSIC-EXTRINSIC FRAUD DISTINCTION-AN

UNNECESSARY DICHOTOMY

Given the Florida Supreme Court's blurring of any distinctionbetween extrinsic fraud and fraud upon the court, a final consider-ation remains: the continuing distinction between intrinsic and ex-trinsic fraud, with only the latter qualifying for relief by indepen-dent action under the saving clause. The public policy that thecourt wants to enforce by maintaining this distinction is to give,within reasonable limitations, repose to judgments. The court ap-parently feels that categorizing the type of fraud perpetrated on adefendant in an original proceeding is the desirable method forgranting finality to judgments:

"Fraud on the court" is a somewhat elusive concept. . . .If itis given a broad application so as to comprehend any type of mis-

130. West Virginia Oil & Gas, 213 F.2d at 707; see also 7 MOORE'S, supra note 8, I60.36-.37[2] and cases cited therein; C. WRIGHT & A. MILLER, supra note 14, § 2868, at 239-40.

131. DeClaire, 453 So. 2d at 377.132. See Alabama Hotel Co. v. L.J. Mott Iron Works, 98 So. 825, 826 (Fla. 1924); see

also R. ARMSTRONG & W. DONAHUE, supra note 40, at 371, 373 (decrees obtained by fraud,mistake, or surprise are impeachable by original bill).

133. DeClaire, 453 So. 2d at 379; cf. Mills v. Mills, 339 So. 2d 681, 684 (Fla. 1st DCA1976) (relief for mistake must be raised by motion within one year); Wilder v. Wilder, 251So. 2d 311, 314 (Fla. 4th DCA 1971).

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representation by a witness or party which induced an incorrectfactual determination by the trier of fact, judgments would besubject to frequent attack by independent actions, and the timefor such attacks would be limited only by laches. The policy ofthe law which favors the termination of litigation suggests thatsuch a broad application of the concept is unwarranted. So toodoes the policy of Rule 1.540(b), RCP, which promotes non-ap-pellate attacks on a final judgment by motion in the original ac-tion-not by independent actions."'

The rationale adopted by the court in construing the savingclause as only allowing an independent action for extrinsic fraud iscertainly the majority rule among the states,3 5 and has support inFlorida precedent. 136 It is not, however, the universal rule. There isa line of authority which takes the position that intrinsic fraud cansupport an independent action and that other tests can be em-ployed to protect the sanctity of a judgment.

A. Federal Decisions Rejecting the Distinction

The federal line of authority begins with Marshall v. Holmes,1 3 7

thirteen years after the Supreme Court rendered theThrockmorton decision. In Marshall the Court held that a federalcourt could review a state judgment tainted by fraud when properjurisdictional requirements were met. 38 The fraud alleged in thatcase, "false testimony and forged documents," was clearly intrinsicfraud."3 9 The Court avoided the language of Throckmorton and thetype of fraud it apparently required and instead chose to rely on acourt's inherent power to seek equity:

While, as a general rule, a defense cannot be set up in equitywhich has been fully and fairly tried at law, and although, in viewof the large powers now exercised by courts of law over their judg-ments, a court of the United States, sitting in equity, will not as-sume to control such judgments for the purpose of simply giving anew trial, it is settled doctrine that "any fact which clearly provesit to be against conscience to execute a judgment, and of which

134. DeClaire, 453 So. 2d at 379 (quoting Alexander, 275 So. 2d at 274).135. See generally 7 MOORE'S, supra note 8, 60.37[1].136. See, e.g., Hamilton v. Flowers, 183 So. 811, 816 (Fla. 1938); Wescott v. Wescott, 444

So. 2d 495, 497-98 (Fla. 2d DCA 1984); MacFadden v. Muckerman, 116 So. 2d 448, 449 (Fla.3d DCA 1959).

137. 141 U.S. 589 (1891).138. Id. at 600-01.139. Id. at 590.

RELIEF FROM FRAUD

the injured party could not have availed himself in a court of law,or of which he might have availed himself at law, but was pre-vented by fraud or accident, unmixed with any fault or negligencein himself or his agents, will justify an application to a court ofchancery. '1 40

The decision in Throckmorton is relegated to a "see also"reference.

141

In light of this conflict between Throckmorton and Marshall,one federal circuit court of appeals sought reconciliation from theUnited States Supreme Court, but was thwarted when the Courtrefrained from addressing the conflict because of technical consid-erations relating to the Court's power to consider a certified ques-tion. 14 12 While "the federal cases generally adhere, at least in state-ment," to Throckmorton,143 there is some federal authorityfollowing Marshall and rejecting "the harsh rule" ofThrockmorton.14'

B. State Cases Rejecting the Distinction

State courts too have chosen not to follow Throckmortonblindly, and have instead opted for the equity-based approach ofMarshall. By 1909, Wisconsin had rejected Throckmorton as "per-haps not broad enough to cover all cases which might arise where acourt of equity would enjoin the enforcement of a judgment. 1 4 5

The leading state case which interpreted a saving clause virtuallyidentical to the Florida and federal saving clauses to allow an inde-pendent action for intrinsic fraud is the New Jersey case of Sham-mas v. Shammas.146 After pointing out the ambiguity of the federalrule, Justice William Brennan, then a member of the New JerseySupreme Court, wrote: "[U]pon principle, we hold that relief forfraud upon the court may be allowed under our rule whether the

140. Id. at 596 (quoting Marine Ins. Co. v. Hodgson, 11 U.S. (7 Cranch) 332, 336 (1813)).141. Marshall, 141 U.S. at 596.142. Graver v. Faurot, 162 U.S. 435 (1896).143. 7 MOORE's, supra note 8, $ 60.37[11, at 379-80.144. Publicker v. Shallcross, 106 F.2d 949, 952 (3d Cir. 1939). See cases cited at 7

MooRE's, supra note 8, 60.37[1], at 377 n.23; see also Woodrum v. Southern Ry. Co., 571F. Supp. 352, 357 (M.D. Ga. 1983) ("persuasive authority counsels against reviving this [in-trinsic-extrinsic] distinction in the independent action procedure"). But see Williams v.Board of Regents, 90 F.R.D. 140 (M.D. Ga. 1981).

145. Boring v. Ott, 119 N.W. 865, 867 (Wis. 1909).146. 88 A.2d 204 (N.J. 1952). The language of the New Jersey rule is set forth id. at 207.

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fraud charged is denominated intrinsic or extrinsic.' 147

C. The Commentators' Rejection

Legal commentators also agree that the distinction between in-trinsic and extrinsic fraud should be abolished for an independentaction under the saving clause. "[A]t times it is a journey into fu-tility to attempt a distinction between extrinsic and intrinsic mat-ter . . .[and] little is to be gained by a rigid classification of fraudinto intrinsic and extrinsic categories."'

118 The distinction between

intrinsic and extrinsic fraud for an independent action "is mostunfortunate . . . .The distinction rests on clouded and confusedauthorities, its soundness as a matter of policy is very doubtful,and it is extremely difficult to apply. It ought not to persist as alimit on independent actions now that it has been abolished formotions."1" 9

VIII. AN ALTERNATIVE FOR THE PROTECTION OF

JUDGMENTS-PRECEDENT FOR AN EQUITABLE STANDARD

The certainty of judgments that the principles of res judicatarequire is protected in the cases and by the commentators citedabove, but not by resort to technical labels. Instead, they focus onthe plaintiff in the independent action, judging whether the personhas a right to invoke the equitable power of the court to reopen ajudgment. One standard that a complainant must meet was offeredby Justice Brennan in Shammas:

Perjured testimony that warrants disturbance of a final judgmentmust be shown by clear, convincing and satisfactory evidence tohave been, not false merely, but to have been willfully and pur-posely falsely given, and to have been material to the issue triedand not merely cumulative but probably to have controlled theresult. Further, a party seeking to be relieved from the judgmentmust show that the fact of the falsity of the testimony could nothave been discovered by reasonable diligence in time to offset itat the trial or that for other good reason the failure to use dili-

147. Id. at 208.148. 7 MOORE'S, supra note 8, 60.3711], at 377-78.149. C. WRIGHT & A. MILLER, supra note 14, § 2868, at 240-41 (footnotes omitted). See

also Comment, supra note 23; Comment, Proposal for General Reform, supra note 36; Corn-ment, Seeking More Equitable Relief, supra note 36; Comment, Unfairly Obtained Ver-dicts, supra note 36.

RELIEF FROM FRAUD

gence is in all the circumstances not a bar to relief.150

One commentator has recently suggested that the following equi-table standard be added to California's rule pertaining to relieffrom judgments:

The distinction between extrinsic and intrinsic fraud is abolishedand has no effect on the grant or denial of relief in an indepen-dent action. Instead, the following equitable factors should beconsidered: the existence of a meritorious defense, diligence in theseeking of relief, the existence of the party's own negligence andfault, and such other factors as the court may deemappropriate. 15'

Indeed, one court that specifically rejected the intrinsic-extrinsicdistinction denied relief on the basis of standards that foreshad-owed those suggested by Justice Brennan and the Californiacommentator. 152

The cases and commentaries which reject reliance on the intrin-sic-extrinsic distinction consider instead the conduct of the de-frauded plaintiff and the entirety of the circumstances at the timewhen the independent action is brought. These considerations arethe bases and limitations for granting relief, not "highly technicaldistinctions such as that between extrinsic and intrinsic fraud." 153

Professors Moore and Lucas reason that the results reached in spe-cific cases may not differ under the two standards:

We believe, however, that the result which would be reachedunder our proposed [equitable] formulation of the rule is not, onthe whole, very different than courts now reach under theThrockmorton rule when it is wisely and liberally applied; that onthe whole the results being reached under Throckmorton aresound and warranted in the interest of finality; but that in theclose, borderline case our proposed formulation would insure ajust result reached with less indirection than, and occasionally notachieved at all, under the present orthodox doctrine.1T

150. Shammas, 88 A.2d at 208-09.151. Comment, Seeking More Equitable Relief, supra note 36, at 1037; see also 7

MOORE'S, supra note 8, 60.37[1], at 377-79; Comment, Proposal for General Reform, supranote 36, at 570.

152. See Boring, 119 N.W. at 867-70.153. Nelson, Bill of Review: The Requirement of Extrinsic Fraud, 30 BAYLOR L. REV.

539, 548 (1978).154. 7 MOORE'S, supra note 8, 60.3711], at 380.

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While Florida has reaffirmed its dedication to the "orthodoxdoctrine," the view that seeks to eliminate the distinction is notwithout recent converts in other states. In Compton v. Compton,155

a case very similar to DeClaire, the plaintiff in an independent ac-tion sought to set aside a property settlement agreement enteredinto with her husband at the time of divorce. The plaintiff claimedthat the husband had fraudulently withheld information concern-ing community property and that, on the basis of the informationgiven, she entered into an agreement which resulted in a divisionto her detriment. In examining the property agreement and di-vorce decree, the Idaho court found that the agreement was evi-dence in the divorce proceeding and made a part of the divorcedecree. 156 These factual circumstances would appear to meet theFlorida Supreme Court's concept of the type of fraud which pre-cludes subsequent independent action:

"[I]f a judgment was obtained upon false testimony or a fraudu-lent instrument and the parties were heard, the evidence submit-ted to and received consideration by the court, then it may besaid that the matter has been actually tried, or was so in issuethat it might have been tried and the parties are estopped to setup an intrinsic or direct fraud to vitiate the judgment, becausethe judgment is the highest evidence and cannot be contradictedby the parties to it.' ' 57

Compton began its analysis of the issues by stating, "While thedistinction between extrinsic and intrinsic fraud may be easy tostate and understand in the abstract, it has proved extremely diffi-cult of application to actual cases.' 58 The Idaho court felt that"the distinction between intrinsic and extrinsic fraud is simply an-other way of phrasing the question, and is of limited utility in ac-tually resolving it. . . . Invoking oversimplified definitional con-cepts does not materially aid in accomplishing this task.' 59 Afterreaching this legal conclusion, the court considered the facts of thewife's allegations to determine if they could support an indepen-

155. 612 P.2d 1175 (Idaho 1980).156. Id. at 1180.157. DeClaire, 453 So. 2d at 377 (quoting Johnson v. Wells, 73 So. 188, 191 (Fla. 1916)).158. Compton, 612 P.2d at 1181.159. Id. at 1182; see also St. Pierre v. Edmonds, 645 P.2d 615, 619 (Utah 1982) ("extrin-

sic-intrinsic distinction fails to provide a rational basis for the harsh legal consequenceswhich flow from it").

RELIEF FROM FRAUD

dent action.6 0 Employing an equitable test similar to those notedabove, the court concluded that the plaintiff "fail[ed] to act on in-formation she possesse[d]," and this and other circumstances didnot warrant allowing the plaintiff to bring her independent actionfor fraud.16' Thus the Idaho Supreme Court shunned reliance ontechnical definitions, scrutinizing instead the equity of the party'sattempt to invoke the remedial powers of the court. The courtfound equity wanting on the wife's part and held that the finalityof the prior divorce decree should be maintained. 62

IX. FLORIDA PRECEDENT FOR AN EQUITABLE STANDARD

Why then did the Florida Supreme Court choose to continue touse the intrinsic-extrinsic fraud distinction to categorize the ac-tions of parties who may have used less than scrupulous means totilt the results of justice in their favor? The Compton case clearlypoints out that the interest of finality can be served while eschew-ing reliance on the definitional distinction. In addition, a minorityof cases and a large body of commentary have shown that "[t]heperpetuation of this extrinsic-intrinsic distinction has led the fed-eral courts into a thicket of inconsistency, because the distinctionis unnecessary, often irrational, and potentially productive of in-justices not outweighed by the interests of finality.' 6 3 The FloridaSupreme Court at least brushed this "thicket of inconsistency" inDeClaire by its reliance on two prior supreme court cases whichappear actually to apply an equity-based standard.

A. Johnson v. Wells

The court in DeClaire employed Johnson v. Wells"6 4 as author-ity for the proposition that "[p]rior to the adoption of [Rule]1.540(b), only what was defined as 'extrinsic fraud' could, in real-ity, form the basis for relief from a judgment.' ' 6 5 In Johnson, for-mer business partners submitted their dispute to arbitration. Atthe arbitration proceeding, a "book of accounts was submitted tothe arbitrators as evidence of the transactions of the partnership,and as containing the record of the accounts and moneys due and

160. Compton, 612 P.2d at 1183.161. Id.162. Id. at 1183-84.163. Comment, Proposal for General Reform, supra note 36, at 542.164. 73 So. 188 (Fla. 1916).165. DeClaire, 453 So. 2d at 377.

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owing."' 6 Upon the basis of the evidence, the arbitrators awardeda judgment to the defendant. Citing Throckmorton, the Johnsoncourt was "mindful of the decisions of this country supporting therule that a judgment will not be set aside by a court of equity be-cause it was founded on perjured testimony or a fraudulent instru-ment, nor for any other matter that was actually presented andconsidered in the judgment assailed.1

11 7 The court continued, "Butwe think that the circumstances of this case as disclosed by the billdifferentiate it from those cases in which the rule was applied." '

The court then listed what those circumstances were: the bookswere kept exclusively by the defendant; the plaintiff was unawareof the fraudulent entries, having been deceived by his partner; andthe fraud was not discovered until after the arbitration proceed-ing.119 The court's analysis of the fraudulent records concluded:

So far as the case made by the bill is concerned, it is one in whichthe defendant made up and presented to the arbitrators a whollyfictitious statement, and one known by him to be such, and with-out which he would have had no claim against the complainant;that this statement and the consideration of it by the arbitratorswas made possible only by complainant's ignorance of the falseentries in the books of account and his confidence in the other'shonesty and fairness, and on this the defendant, Johnson, actedto his own advantage. 17 0

The court upheld the plaintiff's right to bring the action to setaside the arbitration for fraud 71 and was of the opinion that "thefraud as alleged in the bill of complaint was sufficient to vitiate theaward."1

1 2

There are several problems with the DeClaire court's reliance onJohnson: (1) the Johnson court never explicitly adopted theThrockmorton rule; (2) the Johnson court never satisfactorily ex-plained how the partnership records differed from "perjured testi-

166. Johnson, 73 So. at 189 (emphasis added).167. Id. at 191 (emphasis added).168. Id.169. Id. Although the court noted that the plaintiff in the action to have the award set

aside had been sick and unable to attend the arbitration proceedings, it did not refer to thisas a reason to allow him to bring the action. This situation, of course, would not constituteextrinsic fraud because the opposing party did not seek to secure his nonattendance.

170. Id. at 192.171. Id.172. Id. at 191.

RELIEF FROM FRAUD

mony or a fraudulent instrument,1 ' 73 saying only that the "circum-stances" were different from the Throckmorton rule; (3) theledgers in Johnson seem to have been "issues in the case that havebeen tried or could have been tried";1 74 (4) these "circumstances"do not appear to differ substantively from the facts and circum-stances of DeClaire as described by the Fourth District Court.1 75

While upholding the plaintiff's right to bring his complaint toset aside the arbitration award, the Johnson court ultimately re-jected the complaint under the following reasoning:

We have carefully examined the evidence, but have failed tofind the slightest proof of the essential allegations of the bill onwhich the complainant's equity rests. There is evidence that thebooks of account contained many errors, that the books appear tohave been inaccurately kept, but there is nothing whatever toshow that the complainant never had access to the books duringthe existence of the copartnership, that he had no opportunity todiscover the errors which he claimed to exist, that his belief in hispartner's honesty disarmed suspicion, that he had no opportunityto examine the books before they were submitted to the arbitra-tors, nor that all the evidence submitted by the complainant atthe hearing could not have been submitted to the arbitrators, northat he did not have the fullest opportunity to present to the ar-bitrators every issue which he seeks to have tried in this proceed-ing. Nor is there any evidence that the defendant did not presenthis claims to the arbitrators in good faith and upon the full stateof facts as he believed them to exist.1 76

This language closely resembles an application of equitable stan-dards for determining the plaintiff's rights to remedy as othercourts have employed them and as commentators have recom-mended. The proposed equitable tests and the Johnson decisionfocus on the plaintiffs actions and the evidence of fraud in light ofthe totality of the circumstances.

B. Fair v. Tampa Electric Co.

Another problem with the court's reverent adherence to the his-torical custom that only extrinsic fraud could be subjected to laterreview was raised by the other main case cited as authority, Fair v.

173. Id.174. DeClaire, 453 So. 2d at 377.175. See deClaire, 421 So. 2d at 552-53.176. Johnson, 73 So. at 192.

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Tampa Electric Co.177 In Fair, the court acknowledged the rule ofThrockmorton178 but determined that the analysis should not endthere. In a negligence action against the utility, a material witnesscommitted perjury in the original action, with the attorney for theplaintiff allegedly suborning the perjury. The procedural questionwas whether the court had jurisdiction to entertain a "motion forstay of execution and vacation of judgment,1

179 after the "term" of

the court had expired. 80 The court concluded that, because ofstatutory enactments extending a court's control over its judg-ments, the trial court had jurisdiction to hear the motion. In lightof an earlier holding that reached a similar conclusion in a casepresenting extrinsic fraud,""1 the court held that it would not "ex-tend and recognize [the intrinsic-extrinsic fraud] distinction wheremotions for stays are made under the statute.' 18

It may be assumed that the court's holding is now embodied inRule 1.540(b)(3), which allows relief by motion for any type offraud within one year. However, the philosophy for eliminating thedistinction between intrinsic and extrinsic fraud is stated in Fair:

For the purposes of such a motion under this act we are unable todiscern any material difference between [extrinsic fraud] and in-ducing a witness to give false testimony. From a moral standpointthe latter seems more reprehensible, and from a practical stand-point probably more difficult to uncover.

• . . [I]n arriving at our conclusion we do not think that logic orreason prevents our holding that the circuit judge was warrantedin halting the enforcement of a judgment which he was convinced,upon abundant testimony, was founded on testimony perjured, onperjury suborned by counsel for the plaintiff. He knew that thedefendant in the case and the court itself had been deceived.

We are unwilling to subscribe to a rule that if a lawyer stealth-ily fabricates testimony the judge of the court must stand by,powerless to halt the enforcement of the judgment based upon

177. 27 So. 2d 514 (Fla. 1946).178. Id. at 515.179. Id. at 514.180. Id. at 516. The expiration of a court's "term" was historically the limitation on a

court's power to reconsider a judgment. After that time a judgment became absolutely final,passing beyond the court's control except to the extent it was subject to an independentaction. See discussion of the "terms of the court" concept in Greater Boston TelevisionCorp. v. FCC, 463 F.2d 268, 275-77 (D.C. Cir. 1971), cert. denied, 406 U.S. 950 (1972). Seealso Ramagli Realty Co. v. Craver, 121 So. 2d 648, 653-54 (Fla. 1960).

181. Kellerman v. Commercial Credit Co., 189 So. 689 (Fla. 1939).182. Fair, 27 So. 2d at 516.

RELIEF FROM FRAUD

falsehood, simply because by the passage of time the period forfiling motion for new trial has elapsed and the term of court hasended.""3

Thus, a thorough and critical examination of the cases uponwhich the Florida Supreme Court relied to support its holding inDeClaire reveals a lack of conceptual support for the intrinsic-ex-trinsic fraud distinction. Fair enunciated the philosophy for elimi-nating the distinctions between intrinsic fraud and extrinsic fraudin the motion procedure of Rule 1.540(b)(3). Although Johnsongave lip service to the Throckmorton rule, the Johnson court al-lowed an independent action to open a judgment which was as-sisted by what was seemingly intrinsic fraud. It then applied a se-ries of equitable considerations to find that the plaintiff in theindependent equitable action was negligent in not being aware ofthe fraud that was being perpetrated on him by his business part-ner. It is difficult to understand why, in light of these cases, thecourt chose to maintain the "troublesome distinction between in-trinsic and extrinsic fraud"1" 4 for independent actions under thesaving clause.

X. THE EQUITABLE STANDARD AND DeClaire

An application of an equitable standard could have provided thesame protection for the judgment in DeClaire that the supremecourt sought through technical definitional distinctions. An exami-nation of Yohanan's arguments in DeClaire and the circumstancessurrounding the situation reveals that, even under an equitabletest, her request for relief from the divorce decree was tenuous.

The supreme court noted that the divorce proceeding betweenYohanan and deClaire was a highly contested dissolution with con-siderable discovery among the parties both before and after theentry of final judgment.18 5 With the wide-ranging devices availableunder today's discovery rules, it seems that the information con-tained in deClaire's financial affidavit could have been verified.Perhaps more easily seen is Yohanan's negligence in not detectingor at least suspecting the fraud. Few would argue with the proposi-tion that signing one's name to a financial statement for a bankloan would charge a person with constructive knowledge of the

183. Id. at 516-17.184. Truitt v. Truitt, 383 So. 2d 276, 276-77 (Fla. 5th DCA 1980).185. DeClaire, 453 So. 2d at 376.

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family's net worth. When later shown a similar disclosure revealinga difference of half a million dollars, the discrepancy should notescape attention. Also, a difference of net income of over $20,000 ayear would be noticed by most reasonably diligent persons. Thus,if the supreme court wanted to accord the original divorce decreeand judgment the sanctity the justices apparently felt it de-served, i s' it could have rested on the equitable standard as appliedto these facts. 8 7 The court instead chose to run the maze of defini-tions and difficult-to-apply distinctions that mark the landscape ofthe saving clause of Rule 1.540(b).

XI. CONCLUSION

An analysis of the history and development of Federal Rule60(b), which governs the procedures by which a party may seekrelief from a judgment, reveals that the "saving clause" of the rulecontains two separate powers that the federal courts can exercisewhen fraud is alleged: (1) to entertain an independent action torelieve a party from a judgment, decree, order, or proceeding; and(2) to set aside a judgment or decree for fraud upon the court. Fed-eral cases applying the rule also demonstrate that there are mate-rial differences in the applications of the separate powers.

In light of the background of the federal rule, the current inter-pretation of the counterpart Florida rule, Florida Rule of CivilProcedure 1.540(b), in DeClaire v. Yohanan is anomalous. TheFlorida Supreme Court in DeClaire embarked on a journey that ithoped would lead to clarity in the application and interpretation ofthe saving clause of Rule 1.540(b). However, a reader of the opin-ion is left with an unclear rejection of a well-considered opinion ofJudge Pearson of the Third District Court in Brown v. Brown.There, through an analysis of "history, derivation, purpose, andlanguage," he interpreted the Florida saving clause as retaining thesame powers that exist under the federal rule. This reading of dualpowers in the saving clause is well supported, but the supremecourt has apparently rejected it. The court's opinion blended theterms extrinsic fraud and fraud upon the court into one indistin-guishable basis for setting aside a fraudulently obtained judgment

186. All of the justices concurred, with Justice Adkins concurring in the result only.187. There was another statutory ground on which the court could have found

Yohanan's charge of fraud wanting. She was seeking to have the "property agreement" por-tion of the divorce decree set aside because of the falsity of the affidavit filed pursuant toFLA. R. Civ. P. 1.611(a). That rule does not address the use of the required affidavits fordetermining property settlements.

RELIEF FROM FRAUD

through an independent action. By blurring the distinction be-tween these terms, the court failed to recognize substantive andprocedural differences that seem well established under the federalrule. Only a presentation of the proper case to the court will allowit to rechart these murky shoals for the practioner who one daymight need to assist a client victimized by a person corrupting thelegal system.

Beyond the court's reading of the language of Rule 1.540(b), theinterpretation of the substantive rationale behind the rule alsopresents unanswered questions. By laying down a bright-line rulewhereby only extrinsic fraud will qualify for an independent ac-tion, did the court intend to foreclose the remedial power of acourt to relieve a party for accident or mistake, less common butnonetheless recognized as qualifying for an independent action?The plain language would seem to answer "yes." Under the rightcircumstances, however, the court might find an alternative routeto this more obscure part of the saving clause and restore the otherequitable grounds that federal courts have recognized as valid forbringing an independent action.

Finally, in continuing the "troublesome distinction between in-trinsic and extrinsic fraud," '188 the court relied on decisions thatmerely state the language of the rule without providing conceptualsupport for the court's position in DeClaire. A critical analysis ofthe Florida cases that the court relied upon demonstrates the diffi-culty with which the rule is applied and understood and shows theease with which it can be be merely verbalized. One is left to pon-der why, in this age of modern rule pleading and practice whichemphasizes substance over form, the Florida Supreme Court con-tinues to rely on terms, labels, and distinctions that the samecourt, almost 40 years ago, saw fit to abolish with regard to mo-tions for relief from judgments procured by fraud.

The court legitimately recognized the need for giving judgmentsfinality, within reason, but this goal could be met by utilizing a testthat more readily allows for a recognition of the equities of a situa-tion, without having to steer through inconsistent applications ofthe Throckmorton rule. Cases and commentaries suggest that thegoal of protecting the finality of judgments can be obtained by theapplication of an equity-based standard that focuses on the actionsof the plaintiff. By applying this equitable standard, courts are notforced into classifying a wrongdoer's actions under technical defini-

188. Truitt, 383 So. 2d at 276-77.

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tions at the expense of fairness to an innocent party. A court thushas the flexibility to protect a judgment when the policies of resjudicata outweigh the equities asserted by a defrauded party.

In DeClaire, the Florida Supreme Court bypassed an opportu-nity to use an equitable standard in interpreting the saving clauseof Rule 1.540(b) and suggested that the rulemaking process wasthe proper forum for adding powers to the rule. In making thissuggestion, the court shunned ample judicial precedent in which itcould have found an equitable standard. This precedent existed inthe Florida cases that the court relied upon to continue the diffi-cult distinction between intrinsic and extrinsic fraud. Under theproper circumstances, the court should consider the application ofequitable standards to the saving clause or, at a minimum, recog-nize the dual powers that the Brown court discerned in the clause.

DeClaire is the rule in Florida today with which litigants, attor-neys, and judges must contend. Its exact boundaries are yet to bedetermined. The court surely wanted to leave a map with whichthese jurisprudential waters could be sailed with confidence. Thecourse it charted, however, seems little more detailed and reliablethan those with which the ancient mariners began their voyages.

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